Whitaker v. Dep't of Commerce, 970 F.3d 200 (2d Cir. 2020) (Walker, Jr., J.)

Whitaker v. Dep't of Commerce, 970 F.3d 200 (2d Cir. 2020) (Walker, Jr., J.)

Re:  Request for records concerning operations of FirstNet, created by Congress in 2012 at recommendation of the 9/11 Commission to oversee development of National Public Safety Broadband Network ("NPSBN") for first responders

Disposition:  Affirming district court's grant of government's motion for summary judgment in part

• Procedural Requirements, Entities Subject to the FOIA:  The Court of Appeals for the Second Circuit holds that "the language of § 1426(d)(2) is unambiguous:  FirstNet 'shall be exempt from the requirements of . . . chapter 5 of title 5.'"  "It is true, as plaintiffs argue, that the term 'APA' is commonly used to refer to that statute's provisions on rulemaking and judicial review of agency action, rather than to the subset of provisions enacted as part of FOIA."  "As the district court correctly observed, however, that common usage does not negate that 'FOIA is codified in company with the more familiar provisions of the APA within Title 5, Chapter 5.'"  Additionally, "[a]lthough the plain meaning of § 1426(d)(2) is sufficient to end [the court's] inquiry, [the court] note[s] that the statutory history of the APA supports our conclusion that FirstNet is exempt from FOIA."  Specifically, "although the term 'APA' is not commonly used to refer to FOIA, the Supreme Court has explained that '[t]he statute known as the FOIA is actually a part of the Administrative Procedure Act.'"
   
• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the Second Circuit notes that "[t]he legal question [of whether "an agency may decline to perform a search if it reasonably determines that a search will be futile"] is one of first impression in the Second Circuit, as we have not previously defined the circumstances under which an agency may decline to perform a search in response to a FOIA request."  The court "conclude[s] that the district court correctly granted summary judgment for defendant."  "The declarations detail specifically why the agency employees reasonably determined that a search for responsive records would be futile."  The court relates that "the agency declarations explained that the agencies do not have a 'policy of automatically referring to FirstNet all requests for records involving FirstNet.'"